Menkens v. Blumenthal

NaptoN, Judge, delivered the opinion of the court. In this case the plaintiff seeks to recover on a prior possession of twenty years against the defendant, who has an elder and perfect paper title. The decision made by this court, when the case was here before, (see 19 Mo. 496,) restricted the confirmation to Amable Guión, and the derivative title under that confirmation to the lot as embraced in the survey of Eiler; and no portion of the ground now in dispute lies within that survey of the Guión confirmation. A possession, to be available under such circumstances, must be continuous and adverse, and so the instructions of the court upon the trial declared. The court further declared in the eighth instruction that the connexion between the possession of the plaintiff, or those under whom he claimed, and previous occupants, could only be shown by writing; and this instruction is in our opinion erroneous. The only question in cases of this nature is, whether there has been twenty years’ continuous possession, and whether that possession has been adverse to the title. Deeds or instruments of writing are frequently resorted to as the most convincing proofs of the adverse character of the possession, and to show its continuity from one occupant to another where there has been more than one person in possession. But we do not understand that this is the only testimony which can be used for this purpose. Where a possession is broken up by abandonment and there is a succession of independent occupants, no title can be made out which will bar the real owner. But whether one occupant receives his possession from a prior one, or is a mere intruder upon an abandoned lot, is a question of fact which may be determined by any testimony which is legitimate and pertinent. We know of no rule of evidence which confines the proof to deeds or written instruments. It is claimed that a division line agreed on between Josette Wilson, at the time she was proprietor of the Hunot lot, and Primm, who was the owner of the Guión lot, was conclusive [204] upon the defendant Blumenthal, who holds under Mrs. Wilson ; and instructions were asked by the plaintiff to this effect. These instructions, we think, were properly refused. This line was, as subsequent events have shown,.a mistake. The survey of the lots has changed this division line ; but it has given to each party a full lot. What has been lost on one side has been gained on the other; and both parties have availed themselves of the gains, though neither seems disposed to submit to the losses. The main ground upon which such practical adoptions of boundaries have been held to estop, are wanting in this case. No injustice seems to be done to either party by holding each to the correct surveyed line. The mistake was common to both, and its correction, as far as can be seen, equally advantageous to both. Besides, 'the line adopted by Primm and Mrs. Wilson was intended as the boundary between the Guión and Hunot lot as they are understood to be held under their respective confirmations. It has thrown no light upon the present controversy except so far as it may show the extent of Primm’s possession. The plaintiff’s claim is not now upon the Guión confirmation, but upon possession merely. The deed from Bartholomew Guión to Primm was properly admitted. The plaintiff had given in evidence a deed from Antoine Guión to Primm for his interest in his father’s land “ near St. Louis.” This latter deed would not pass the land now in dispute, if it appeared that the father owned land in the vicinity of St. Louis, and the deed from Bartholomew shows that such lands were owned by Amable Guión “ near the water-works of the city of St. Louis,” which would fully answer the descriptive words of the deed from Antoine, without embracing the land now in dispute. To construe a deed for land “ near St. Louis,” as conveying a lot in the town of Carondelet, merely because the latter is distant not more than five or six miles from the former, would be a very liberal interpretation of a deed, and could only be authorized upon proof that the grantor had no land coming more nearly within the language of the deed. [205] The deed from Bartholomew to-Bernard was properly excluded, as it did not appear that Blumenthal had any title to the land thereby conveyed. Upon the whole case, we think the judgment of the circuit court was right, notwithstanding the error of the eighth instruction. The last instruction, given at the plaintiff’s instance, told the jury that Primm was fully invested with the interest of Joseph Guión to the land in controversy by the deed from him which was in evidence, and consequently the plaintiff was entitled to recover under the eighth instruction to the extent of that interest, if the jury believed there had been a continuous adverse possession of twenty years. Their verdict must be understood as negativing the fact of adverse possession — the basis upon which the suit is founded. The plaintiff was not prejudiced by the eighth instruction so far as one-eighth of the land is concerned ; but the jury have found against him as to the whole. We do not perceive any benefit which the plaintiff could derive from another trial; and as we think the judgment is for the right party, although an error was committed, we shall affirm the judgment. The other judges concur.